New ACT Bill To Respond to Royal Commission Findings; Removes Seal Of Confession Protection

The Royal Commission Criminal Justice Legislation Amendment Bill 2020 (ACT) (the Bill) was introduced into the ACT Assembly on 2 July 2020 by the Attorney-General, Gordon Ramsay MLA. According to the Attorney-General's Media Release, the new legislation continues the ACT Government’s commitment to implement recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse (the Commission):

The key aspect of the changes is to ensure that information received under the seal of confession is no longer protected under the Evidence Act 2011 (ACT).

The Policy Objectives and Purpose of the Bill

The Bills policy objectives are the:

• implementation of a number of recommendations made by the Commission in its "Criminal Justice Report", and
• to amend the Evidence Act 2011 (ACT) section 127 which relates to religious confessions, to support the reforms passed in 2019 which implemented the Commission's recommendations relating to "reporting laws".

Consultation and Development of the Bill

In the Explanatory Statement to the Bill, the Attorney-General indicates that the Justice and Community Safety Directorate consulted with the Sexual Assault Reform Program (SARP) Reference Group on the draft Bill, and that the comments received were broadly supportive of the reforms and the comments on the draft Bill were considered in the development of the Bill.

Further, significant targeted consultation occurred in relation to the amendments of the Crimes Act 1900 (ACT) in Part 2 of the Bill, relating to amendments to the offence of a sexual relationship with a child or young person under special care. This included opportunities to contribute to policy discussions, as well as an opportunity to provide feedback in relation to the technical construction of the offence.

Consultation on the amendments in relation to tendency and coincidence were part of a national consultation process which including the drafting, consultation and agreement by the Council of Attorneys-General (CAG). The tendency and coincidence provisions, which are in Part 3 of the Bill, are based on the model laws agreed to by CAG.

Commission's Recommendations Addressed by the Bill

The recommendations of Commission's Criminal Justice Report addressed by the Bill are as follows:

• Recommendation 21 - recommends that each state and territory government should introduce legislation to amend its persistent child sexual abuse offence so that:
• the actus reus is the maintaining of an unlawful sexual relationship,
• an unlawful sexual relationship is established by more than one unlawful sexual act,
• the trier of fact must be satisfied beyond reasonable doubt that the unlawful sexual relationship existed but, where the trier of fact is a jury,  jurors need not be satisfied of the same unlawful sexual acts,
• the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed,
• on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application.
• Recommendation 22 - recommends that legislation for a persistent child abuse offence, to the effect of the Commission's draft provision (see, Appendix H - Persistent Sexual Abuse of Children Model Provisions), should be introduced.
• Recommendation 44 -  recommends that in order to ensure justice for complainants and the community, the laws governing the admissibility of tendency and coincidence evidence in prosecutions for child sexual abuse offences should be reformed to facilitate greater admissibility and cross-admissibility of tendency and coincidence evidence and joint trials;
• Recommendation 45 -  recommends that tendency or coincidence evidence about the defendant in a child sexual offence prosecution should be admissible:
• if the court thinks that the evidence will, either by itself or having regard to the other evidence, be "relevant" to an important evidentiary issue in  the proceeding, with each of the following kinds of evidence defined to be "relevant to an important evidentiary issue" in a child sexual offence proceeding:
• evidence that shows a propensity of the defendant to commit particular kinds of offences if the commission of an offence of the same or a similar  kind is in issue in the proceeding;
• evidence that is relevant to any matter in issue in the proceeding if the matter concerns an act or state of mind of the defendant and is important  in the context of the proceeding as a whole.
• unless, on the application of the defendant, the court thinks, having regard to the particular circumstances of the proceeding, that both: 
• admission of the evidence is more likely than not to result in the proceeding being unfair to the defendant; 
• if there is a jury, the giving of appropriate directions to the jury about the relevance and use of the evidence will not remove the risk.
• Recommendation 46 - recommends that common law principles or rules that restrict the admission of propensity or similar fact evidence should be explicitly abolished or excluded in relation to the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution.
• Recommendation 47 -  recommends that issues of concoction, collusion or contamination should not affect the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution. The court should determine admissibility on the assumption that the evidence will be accepted as credible and reliable, and the impact of any evidence of concoction, collusion or contamination should be left to the jury or other fact-finder.
• Recommendation 48 - recommends that tendency or coincidence evidence about a defendant in a child sexual offence prosecution should not be required to be proved beyond reasonable doubt.
• Recommendation 49 - recommends that evidence of:
•  the defendant’s prior convictions;
• acts for which the defendant has been charged but not convicted (other than acts for which the defendant has been acquitted) should be admissible as tendency or coincidence evidence if it otherwise satisfies the test for admissibility of tendency or coincidence evidence about a defendant in a child sexual offence prosecution.
• Recommendation 50 - recommends that Australian governments should introduce legislation to make the reforms recommended by the Commission to the   rules governing the admissibility of tendency and coincidence evidence;
• Recommendation 51 - which recommends that legislation to the effect of the Commission draft provisions (see Appendix N of the Commission's report, relating to draft provisions in relation to tendency and coincidence evidence) should be introduced for Uniform Evidence Act jurisdictions and non–Uniform Evidence Act jurisdictions.

A Summary of the Amendments Proposed

The Bill will amend Crimes Act 1900 (ACT) section 56 to give effect to the recommendations of the Commission regarding persistent child sexual abuse offences (see recommendations 21 and 22), and to address issues which arose in the cases of KN v R [2019] ACTCA 37 and R v EN [2019] ACTSC 354.

The Bill will amend the Evidence Act 2011 (ACT) with respect to the "tendency and coincidence evidence provisions" to implement the model provisions developed by the Council of Attorneys-General working group and agreed to by the CAG in December 2019. The Evidence Act 2011 (ACT) section 127 will also be amended to provide that information regarding sexual abuse or non-accidental physical injury that is being experienced, has been experienced or there is a substantial risk may be experienced, by a child, is not captured by the entitlement of a member of the clergy to refuse to divulge that a religious confession was made or the contents of a religious confession.

Comments by the Attorney-General

Commenting on the legislation in his Media Release the Attorney-General said:

On the changes to the evidentiary laws around religious confession, the Attorney-General said:

The Attorney-General has also restated the ACT Governments Commitment to implementing the Commission's recommendations:

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Royal Commission Criminal Justice Legislation Amendment Bill 2020 [ACT], explanatory statement and second reading speech available from TimeBase's LawOne Service.

Royal Commission Criminal Justice Legislation Amendment Act 2019 [ACT], explanatory statement and second reading speech available from TimeBase's LawOne Service.

Media Release: New laws to better support victims of child sexual abuse [ACT Attorney-General, 2 July 2020]

Criminal Justice Report (Royal Commission into Institutional Responses to Child Sexual Abuse, August 2017)